IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.11.2008
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.PD.No.3570 of 2008
and
M.P.No.1 of 2008
S.Venkatesh ... Petitioner
Vs
P.Poongodi ... Respondent
Civil Revision Petition filed against the order dated 22.8.2008 made in C.M.A.No.17 of 2008 on the file of the Principal Subordinate Judge,Salem confirming the order and decretal order dated 9.4.2008 in I.A.No.121 of 2008 in O.S.No.88 of 2008 passed by the First Additional District Munsif, Salem.
For Petitioner : Mr.T.Karunakaran
For respondent :Mr.N.Nithianandam
O R D E R
The revision petitioner/respondent/defendant in the suit has file the above civil revision petition aggrieved against the Judgment dated 22.8.2008 in C.M.A.No.17 of 2008 passed by the Principal Subordinate Judge, Salem allowing the C.M.A and setting aside the order passed by the First Additional District Munsif, Salem in I.A.No.121 of 2008 in O.S.No.88 of 2008 restraining the defendant/revision petitioner herein from running powerloom machinery between 6.00p.m.,to 6.0o a.m by means of ad interim injunction till the disposal of the suit.
2. According to the learned counsel appearing for the revision petitioner/respondent/defendant, the learned Principal Subordinate Judge, Salem has not taken into consideration the fact that the Municipal Council has not issued any direction for abatement of nuisance and further that as per Section 251 of the Tamil Nadu District Municipalities Act 1920 working of factory, workshop or workplace can be restricted if wilful default is made in carrying out the direction of the Municipality and this aspect has not been taken note of by the learned Principal Subordinate Judge, Salem while pronouncing Judgment in C.M.A.No.17 of 2008 and in any event the Judgment passed by the learned Principal Subordinate Judge, Salem in C.M.A.No.17 of 2008 is an erroneous one and against the principles of law and therefore prays for allowing the civil revision petition.
3.The respondent/plaintiff has filed a suit in O.S.No.88 of 2008 on the file of First Additional District Munsif, Salam seeking a relief of permanent injunction restraining the defendant and his men from running his power loom machineries between 6.00p.m., to 6.00 a.m and and thereby causing private noise nuisance and restraining the defendant from disturbing the peaceful enjoyment of the suit property by the plaintiff.
4.The learned First Additional District Munsif, Salem in I.A.No.121 of 2008 in O.S.No.88 of 2008 filed by the respondent/plaintiff has dismissed the said application for interim injunction, inter alia stating that the respondent/plaintiff has to prove that the revision petitioner/defendant has no right to operate the powerloom from 6.00p.m.,to 6.00 a.m., in the morning and only when it is established, a prima facie case in favour of the respondent/plaintiff has to be determined and that the respondent/plaintiff has not established any irreparable loss made to her and resultantly dismissed the application advising the respective parties to conduct the main suit considering the nature of the suit immediately.
5. However, the learned Principal Subordinate Judge, Salem in the Judgment passed in C.M.A.No.17 of 2008 has inter alia opined that the revision petitioner/defendant is running nearly six looms in his house and there is no evidence before the Court that the house is situated in non residential locality or it is in the factory premises and further that as per Ex B1 to Ex B3 house tax receipts , the revision petitioner/defendant is running power looms in his house and it is not a place of factory and though the Municipal authorities have not taken any steps, but the Civil Court has right to prevent such nuisance by giving interim prohibitory orders and further if the power looms are allowed to run upto 9.30 p.m., it will cause much hardship to the children or aged persons, residing in the plaintiff’s house and therefore, considering the facts and circumstances of the case has restrained the revision petitioner/defendant from running the power loom from 7.30 p.m., to 6.30 a.m., by way of passing temporary injunction and setting aside the fair and decretal order passed in I.ANo.121 of 2008 in O.S.No.88 of 2008 dated 9.4.2008 by allowing the civil miscellaneous appeal.
6. From the plaint, it is quite evident that the respondent/plaintiff has sought for a relief of permanent injunction against the revision petitioner/defendant and his men from running a power loom machineries between 6.00p.m., to 6.00 a.m., and thereby causing private noise nuisance etc.,
7.In I.A.No.121 of 2008 in O.S.No.88 of 2008 filed by the respondent/plaintiff before the learned First Additional District Munsif, Salem, the relief of ad interim injunction against the revision petitioner/plaintiff has been sought for in regard to the running of power loom between 6.00p.m., to 6.00 a.m etc. Suffice to it, this Court is of the view that the relief prayed for in the main suit by the respondent/plaintiff and the relief prayed for in I.A.No.121 of 2008 in O.S.No.88 of 2008 by her is one and the same. It is to be noted that carrying on an offensive trade so as to interfere with the another’s comfort or an occupation is a legal nuisance. As a matter of fact, the Court of law must consider the locality; the question whether the said nuisance had been long in existence; whether the said work which causes nuisance is commonly carried on in the locality and on the question of like nature. Invasion of right of an individual for a comfortable and decent dwelling will give raise to an actionable wrong in a civil suit. In fact nuisance is a mixed concept partly subjective and partly objective. Added further, the noise alone may amount to nuisance so as to enable the Court of law to grant the relief of permanent injunction whether it is temporary or otherwise. Moreover, the Court is also to see whether the nuisance viz., annoyance is of such a nature which materially interferes with one’s ordinary comfort in the course of day to day living. It is not the standard of petulant cynical or fastidious individual that will furnish a guide. A discomfort to be actionable must be substantial.
8. As far as the present case is concerned, this Court is of the considered view that the relief of permanent injunction prayed for in the suit and the relief of interim injunction prayed for in the application in I.A.No.121 of 2008 in O.S.No.88 of 2008 is of same nature. Admittedly, the respondent/plaintiff is not residing in the suit property.
9.Without going into the merits of the case and leaving open the issues/disputes in the suit, and taking note of the fact that the relief prayed for in the main suit viz., permanent injunction and the interim injunction prayed for in the application is one in nature and in view of the facts of the case, this Court opines that the controversies involved in the suit can be decided in the main suit itself and therefore this Court directs the parties to get ready with the conduct of the trial of the main suit and in that view of the matter, this Court disposes the civil revision petition.
10. In fine, the civil revision petition is disposed of and the Judgment passed in C.M.A.No.17 of 2008 on the file of Principal Subordinate Judge, Salem is set aside. The parties are directed to get ready with the conduct of the main suit before the trial Court viz., the First Additional District Munsif, Salem and that the trial Court is directed to dispose of the main case within a period of four months from the date of receipt of a copy of this order. No costs. Consequently, connected M.P.No.1 of 2008 is closed.
sg
To
1. The Principal Subordinate Judge ,
Salem
[ PRV / 16168 ]